COURT-MARTIAL, &c.

TESTIMONY PRODUCED ON THE PART OF THE PROSECUTION.

Captain Mockler of the Newfoundland Regiment,
SWORN.

IN the action of River Raisin, on the 22d of January, 1813, I commanded a detachment of the Newfoundland Regiment, who were acting with the 41st. During the action I had occasion to go where the 41st were formed. I saw Mr. Bender lying behind a field magazine, which was upon a sled, about seventy or eighty yards from the piqueting, where the Americans were, and from which they were firing. I thought, from seeing him in that situation, that he might have been killed or wounded, as his face was near the ground. I called to him, by his name and asked him if he was wounded - He answered not, that he had not been there long. He added that his horse was wounded and that there was no ammunition. I told him to get up immediately and go to his men,

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or to get ammunition for the guns - I do not recollect which. I saw no more of him until I saw him at the left of the village.

Q. At the time you saw Mr. Bender lying behind the sled was he in the rear of his men and how far was he from them?
A. The men had just retreated before I saw him. Before they retired they had been immediately on his right and had fallen back to the ravine, which was the reason for going there. At this time the detachment I commanded had driven the Americans and was up under a barn. While the Americans were firing, Mr. Bender was thirty or forty yards from the men who had fallen back. The men were immediately ordered to go to the left, along the ravine, to the right of the village.

Q. Did Lieutenant Bender give you any reason for being in the situation you have described?
A. No - I asked him the reason. He only said he had not been there long, as I have before stated.

Cross Examined.

Q. How long had the troops been in action at the time you saw Lieutenant Bender behind the sled of ammunition?
A. About two hours, to the best of my recollection: The action began at day-light.

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Q. Did you see any person with Lieutenant Bender at the time?
A. Not that I recollect.

Q. If any person had been there at the time, should you have seen him ?
A. I think it likely I should - I did not stop long. If any person was there, he must have been very close behind the sled. I saw several wounded lying in the field, but not near him.

Q. Did it appear to you that the sled was of such a description, as to afford any protection from the fire of the enemy ?
A. Yes - I think it would, from the position it was in, for the horse's head was towards the enemy and the field magazine was on the sled.

Q. What was the height of the sled and magazine?
A. The sled was a common one, of the height of the common Canadian sleds which are used in winter. The magazine, in the manner in which it was placed on the sled, was about three feet high, from the ground.

Q. Was there not a ravine in the rear of the sled; and at what distance from it?
A. Yes, about thirty or forty yards. This was the ravine into which the men had fallen back.

Q. Were there any men under cover of the ravine at the time?

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A. The men had fallen back to the ravine when I went there. There were very few men in the ravine.

Q. Had not orders been given to the troops, (shortly before you saw Lieutenant Bender,) to retreat to the ravine, and put themselves under cover.
A. I heard no such orders and have no knowledge of such having been given.

Q. Do you know what position Lieutenant Bender occupied during the action, and if you do, at what distance from that position was it, that you saw the sled?
A. I do not know what position Lieutenant Bender occupied, as I was looking to my own men, who were on the left.

Q. Did you, on your return to the line, or at any other time, and when, report to General Proctor, the situation which you saw Lieutenant Bender?
A. Never.

Q. How long afterwards was it that you saw Lieutenant Bender on the left of the line ?
A. I suppose about half an hour.

Q. Had he any ammunition with him when you saw him the second time and did you see him deliver any to the troops ?
A. I did not see any with him.

Q. Were not the whole of the officers and men

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on the left, concealed behind barns and houses, after the movement from the right?
A. Yes, I believe it was for that purpose they went there.

Q. Did you ever mention to any other officers, and to whom, the circumstance of seeing Lieutenant Bender behind the sled, and what were the terms you made use of?
A. I mentioned it to Doctor Faulkener, Lieutenant Hales and Captain Houghton, at Amherstburg. I believe I mentioned it before all the officers who were at Amherstburg, who had asked me about it, whether it was true.

Q. On what occasion was it, that you mentioned it to the above officers?
A. I mentioned it in my own room, two or three evenings after the engagement.

Q. What gave rise to your mentioning it?
A. They were talking about the detachment of the 41st and Newfoundland.

Q. Did you say at the time, that you saw Lieutenant Bender lying behind a dead, or a wounded horse?
A. I do not recollect whether I said a dead, or a wounded horse - I think I said, a wounded horse. The officers said after, it was a dead horse - I told them they were mistaken, that it was a wounded horse.

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Q. What officer did you hear say, it was a dead horse?
A. It was said by several of them and I think by Mr. Hales and Captain Tallon. It was generally spoken of as a dead horse.

Q. Was it not in consequence of a degree of rivalship between the two corps, that you mentioned the circumstance alluded to?
A. It was in consequence of the officers saying that our men behaved much better than theirs.

Q. Did you perceive any alteration in the conduct of the other officers to Lieutenant Bender from what you had mentioned to them?
A. Not that I heard of, but it was spoken of as a shameful thing.

Q. Did you not, yourself, treat him with the same friendship as before?
A. I spoke to him as I would to any other officer, not having any particular friendship for him.

Q. Did not the command of the garrison devolve upon you shortly after, and did you not appoint Lieutenant Bender Fort Adjutant, in preference to several others?
A. I did not appoint him myself; but by the orders of Colonel St. George - I spoke to Colonel St. George, who was wounded - He told me some person must be appointed, and mentioned Lieutenant Bender. The temporary command had devolved

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upon me, while Colonel St. George was wounded. Captain Tallon was there also and was wounded. I always called upon them and took directions from them.

Examined by the Court.

Q. At the time you saw Lieutenant Bender on the ground behind the ammunition magazine, what impression had you as to his situation?
A. I thought it an extremely awkward situation, to see him in at the time.

Q. What did Lieutenant Bender do in consequence of your telling him to get from behind the magazine?
A. He got up and went a direct line to the ravine; I went across to the right of the 41st.

Q. Was there any officer of the 41st near you during the time you saw Lieutenant Bender in that situation, to whom you communicated it?
A. Not at the time.

Q. Did you make any objections to Lieutenant Bender’s being appointed Fort Adjutant, at the time he was proposed?
A. No - I believe there was no one else to act, at the time.

Q. Was not Lieutenant Hales, of the 41st, and Lieutenant Garden, of your own corps, at Amherstburg?
A. I do not recollect.